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Court: Obama appointments are unconstitutional

By SAM HANANEL – The Associated Press

Jan. 25, 2013

WASHINGTON – In an embarrassing setback for President Barack Obama, a federal appeals court panel ruled Friday that he violated the Constitution in making certain recess appointments and moved to curtail a chief executive's ability in the future to circumvent the Senate in such scenarios.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that Obama did not have the power to make three recess appointments last year to the National Labor Relations Board because the Senate was officially in session — and not in recess — at the time. If the decision stands, it could invalidate hundreds of board decisions.

The court said the president could only fill vacancies with the recess appointment procedure if the openings arise when the Senate is in an official recess, which it defined as the break between sessions of Congress.

The ruling threw into question Obama's recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray's appointment, also made at the same time, has been challenged in a separate case.

The White House had no immediate comment.

Obama made the recess appointments on Jan. 4, 2012, after Senate Republicans spent months blocking his choices for an agency they contended was biased in favor of unions. Obama claims he acted properly because the Senate was away for the holidays on a 20-day recess. The Constitution allows for such appointments without Senate approval when Congress is in recess.

But during that time, GOP lawmakers argued, the Senate technically had stayed in session because it was gaveled in and out every few days for so-called "pro forma" sessions.

GOP lawmakers used the tactic — as Democrats had done in the past — specifically to prevent the president from using his recess power to install members to the labor board. They had also vigorously opposed the nomination of Cordray. The White House argued that the pro forma sessions — some lasting less than a minute — were a sham.

The three-judge panel, all appointed by Republican presidents, ruled that during one of those pro forma sessions on Jan. 3, the Senate officially convened its second session of the 112th Congress, as required by the Constitution.

"Either the Senate is in session, or it is in recess," Chief Judge David Sentelle wrote in the 46-page ruling. "If it has broken for three days within an ongoing session, it is not in "the Recess" described in the Constitution."

Simply taking a break of an evening or a weekend during a regular working session cannot count, he said. Sentelle said that otherwise "the president could make appointments any time the Senate so much as broke for lunch."

The judge rejected arguments from the Justice Department's Office of Legal Counsel, which claimed the president has discretion to decide that the Senate is unavailable to perform its advice and consent function.

"Allowing the president to define the scope of his own appointment power would eviscerate the Constitution's separation of powers," Sentelle wrote.

Sentelle was joined in the ruling by Judge Thomas Griffith, appointed to the court by President George W. Bush, and Karen LeCraft Henderson, who was appointed by President George H.W. Bush.

The Obama administration is expected to appeal the decision to the U.S. Supreme Court. But if the ruling stands, it means that hundreds of decisions issued by the board over more than a year would be invalid. It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down. The board is allowed to issue decisions only when it has at least three sitting members.

Obama used the recess appointment to appoint Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the NLRB, giving it a full contingent for the first time in more than a year. Block and Griffin are Democrats, while Flynn is a Republican. Flynn stepped down from the board last year.

The court's decision is a victory for Republicans and business groups that have been attacking the labor board for issuing a series of decisions and rules that make it easier for the nation's labor unions to organize new members.

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